5.5Request for Documents

A.Generally

MCR 2.310 addresses the production of documents, tangible things, ESI, and entry on land for inspection and other purposes. There is a separate rule addressing medical records. See MCR 2.314.¹

B.Requests to Parties

A party may request that another party permit entry on land, or produce and permit the requesting party or someone acting on that party’s behalf:

“(i) to inspect and copy designated documents or

(ii) to inspect and copy, test, or sample other tangible things that constitute or contain matters within the scope of MCR 2.302(B) and that are in possession, custody, or control of the party on whom the request is served[.]” MCR 2.310(B).

“The request may, without leave of court be served on the plaintiff after commencement of the action and on the defendant with or after the service of the summons and complaint on that defendant.” MCR 2.310(C)(1). The request must list the requested items individually or by category and must describe each with reasonable particularity. Id. In addition, the request must include “a reasonable time, place, and manner of making the inspection and performing the related acts, as well as the form or forms in which electronically stored information is to be produced, subject to objection.” Id. Generally, the party served with the request must serve a written response within 28 days after being served. MCR 2.310(C)(2). However, if the served party is the defendant, he or she has 42 days after the summons and complaint are served to serve a written response. Id. The court may alter the response time. Id. See MCR 2.310(C)(2) for more information on the content of responses and objections.

Documents should be produced as kept in the usual course of business or organized and labeled to correspond to the categories requested. MCR 2.310(C)(5). Similarly, where the request is for electronically stored information, and it does not specify the form or forms in which the information is to be produced, the information must be produced “in a form or forms in which the party ordinarily maintains it, or in a form or forms that is or are reasonably usable.” MCR 2.310(C)(2). The responding party only needs to “produce the same information in one form.” Id.

The requesting party may move for an order compelling discovery pursuant to MCR 2.313(A) in the absence of a response, upon objection to the request, or upon failure to permit inspection. MCR 2.310(C)(3). In the motion, the moving party must state that he or she made a good faith effort to secure the disclosure before taking court action. Id.

“The party to whom the request is submitted may seek a protective order under MCR 2.302(C).”² MCR 2.310(C)(4).

Unless otherwise ordered by the court, the party who produces the items for inspection is responsible for assembly costs, and the party requesting the items is responsible for any copying costs. MCR 2.310(C)(6).

C.Requests on Nonparties

Upon court order, or after all parties have had a reasonable opportunity to obtain an attorney as determined under MCR 2.306(A), a party may issue a subpoena (or request the court issue a subpoena if the party is unrepresented) to a non-party for entry on land, or production or inspection of documents, tangible things, or ESI. MCR 2.305(A)(1). MCR 2.506(A)(2)-(3) apply to a request to produce ESI, and MCR 2.506(I) applies to a subpoena for hospital records. MCR 2.305(A)(1). Service of the subpoena must conform with MCR 2.506(G), and a copy of the subpoena must be served on all other parties on the date of issuance. MCR 2.305(A)(5). A subpoena issued under MCR 2.305³ is subject to the provisions of MCR 2.302(C) (protective orders). MCR 2.305(A)(4). See Section 5.11(B) for information on protective orders.

If the person does not permit inspection or entry within the time specified in the subpoena, which may not be less than 14 days after the request is served unless a shorter period is ordered by the court, the requesting party may file a motion to compel. MCR 2.305(A)(3). “The motion must include a copy of the request and proof of service of the subpoena,” and the “movant must serve the motion on the non-party as provided in MCR 2.105.” MCR 2.305(A)(3). See Section 5.11 for information on discovery motions.

“Upon written request from another party and payment of reasonable copying costs,” a party that subpoenaed items from a non-party must “provide copies of documents received pursuant to a subpoena.” MCR 2.305(A)(7).

D.Standard of Review

A trial court’s decision whether to order a party to produce relevant, nonprivileged documents is reviewed for an abuse of discretion. Davis v O’Brien, 152 Mich App 495, 504-505 (1986).